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[2021] ZAGPPHC 87
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Ramaloko and Others v S (A60/2019) [2021] ZAGPPHC 87 (3 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES: YES/
NO
(3)
REVISED: YES/
NO
03/03/2021
Case number:
A60/2019
In
the matter between:
RAMALOKO,
LEBOGANG
1
ST
APPELLANT
MOTLOKOA,
LELEFA
2
nd
APPELLANT
MAIMANE,
THABISO
3
rd
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
MOSOPA,
J
1.
The issues in this
judgment are;
1.1.
The admissibility of
the warning statements by the second and third appellants;
1.2.
Whether the state led
sufficient evidence to convict the appellants; and
1.3.
The sentence imposed.
2.
The three appellants
were convicted of housebreaking with intent to rob and robbery with
aggravating circumstances, read with the
provisions of section 51(2)
of Schedule 2 of Act 105 of 1997, murder read with the provisions of
section 51 of Act 105 of 1997
and the contravention of
section
49(1)(a)
of the
Immigration Act 13 of 2002
.
3.
Following their
convictions, the appellants were sentenced as follows:
3.1.
Housebreaking with
intent to rob and robbery – 15 years imprisonment;
3.2.
Murder – life
imprisonment; and
3.3.
Contravention of
Immigration Act – 3 years
imprisonment.
4.
The appellants have a
right of automatic appeal by virtue of the fact that life
imprisonment was imposed for the murder charge.
5.
This is an appeal
against both conviction and sentence. The appellants were all legally
represented throughout their trial.
Incomplete
Record
6.
Upon reading the
record, it came to our attention that the evidence of Mr Thokozane
Ngcobo was missing. Mr Ngcobo was the witness
who allegedly bought a
cellular device, which was allegedly robbed from the complainants,
from the third appellant.
7.
The evidence of Mr
Ngcobo became apparent when the third appellant was led by his
counsel as questions were asked pertaining to
Mr Ngcobo. Same was
apparent under cross-examination and it appeared that Mr Ngcobo
bought the cellular device from the third appellant
on 1 June 2016,
when the third appellant wanted money for transport for his
girlfriend. The same evidence was also dealt with at
length by the
magistrate in his judgment and it is part of the evidence which was
used to convict the third appellant. Also, when
officer Ramosinong
was testifying, he mentioned the fact that he received a cellular
device from Mr Ngcobo, which he purchased
from the third appellant,
when he came back from KwaZulu Natal.
8.
Neither of the parties
raised this issue in their notice of appeal nor in their respective
heads of argument. The issue was raised
by the court
mero
motu
when hearing
the appeal matter.
9.
In the matter of
S
v Chabedi
2005 (1) SACR 415
(SCA)
at
para 5-6, Brand JA, when dealing with the issue pertaining to an
incomplete record on appeal, observed;
“
[5]
…however, the requirement is that the record must be adequate
for proper consideration of the appeal, not that it must
be a perfect
recording of everything that was said at trial…
[6] The question
whether defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be
answered in
the abstract. It depends, inter alia, on the nature of the defects in
the particular record and on the nature of the
issues to be decided
on appeal (See also S v Schoombie and Another
2017 (2) SACR 1
(CC)).”
10.
What we know from the
record, despite the missing evidence is that;
10.1.
The third appellant and
Mr Ngcobo were, at that stage, neighbours;
10.2.
Mr Ngcobo bought a
cellular device for an amount of R400.00, from the third appellant;
10.3.
The cellular device
bought from the third appellant was returned to officer Ramosinong by
Mr Ngcobo and kept in the SAP13; and
10.4.
That this was not the
only evidence which was used to convict the third appellant.
11.
Based on the above, we
were satisfied that despite the record being incomplete, it was
adequate for proper consideration of the
appeal matter, as was
decided in the
Chabedi
matter.
Conviction
12.
It is trite that where
there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct
and the appeal court
will only reverse it where it is convinced that it was wrong (
R
v Dhlumayo and Another
1948 (2) SA 677
(A)
at
p 706). In my view, this is the correct view that must be adopted by
the court of appeal where the presiding trial court misdirected
itself when dealing with the merits of a particular case.
13.
The evidence used to
convict the appellants can be summarized as follows; all the
appellants are Lesotho nationals, who are in the
country illegally.
They failed to produce their passports or permits. All the
complainants did not see the people who attacked
them. They all
confirmed that on the night of the incident, a window was broken and
they went outside to investigate what was happening.
They went back
to the house and they heard a second window breaking. They then ran
into different bedrooms and locked themselves
in. They heard a person
saying that he only wants money, he is not going to hurt them. Then a
shot was fired through the bedroom
door of the deceased, which
eventually killed her. At that stage, the deceased was in the company
of her minor child.
14.
A bicycle, two cellular
devices and a microwave oven were taken from the home by the
perpetrators. The microwave oven was found
at the hostel when the
police attempted to arrest the third appellant, but he evaded arrest.
The cellular device was retrieved
from Mr Mathika, who bought it from
the third appellant for R400.00, and the other cellular device from
Mr Ngcobo, who also bought
it from the third appellant.
15.
The first appellant,
after his arrest, while he was in custody for an unrelated matter,
did the pointing out and made certain admissions
to the officer in
charge of the pointing out, which were found to be admissible by the
trial court. The second appellant made a
warning statement to the
investigating officer Nagel, and made certain admissions which the
court found to be admissible. The third
appellant, in addition to the
evidence by people who bought cellular devices from him, made a
warning statement to investigating
officer Nagel, which was found to
be admissible by the court. Only the second appellant did not testify
in his defense. The rest
of the appellants denied the allegations
against them when they testified.
Evaluation
16.
The first appellant was
properly and adequately appraised of his constitutional rights before
he made the pointing out. These rights
were understood by the first
appellant, as they were explained to him in the language that he
understood best – South Sotho.
The undisputed evidence is that
Sergeant Chele is a South Sotho-speaking person and further, that
there was no misunderstanding
when the language was interpreted to
the first appellant.
17.
The first appellant
made certain admissions to the officer in charge of the pointing out
after he was again appraised of his constitutional
rights. He did not
admit to the commission of the offence, but admitted that he was
there at the scene and informed the captain
of his role on the night
of the incident. The below court, in our considered view, did not
misdirect itself when it found the evidence
of the pointing out to be
admissible. As such the accused was correctly convicted of the
offence he was charged with. We see no
reason to interfere with such
conviction.
18.
The second appellant
was convicted solely on the warning statement. The second appellant
was not assaulted or coerced into making
the warning statement, he
was promptly and adequately appraised of his constitutional rights
and he understood such rights.
19.
In the warning
statement, the second appellant was afforded an opportunity to make
an election pertaining to the right to legal
representation. The
second appellant elected to be represented by a legal practitioner at
the state’s expense. The steps
taken by the investigating
officer to provide him with the opportunity to do so, reveals the
following: “
He
will apply at court for legal aid.”.
Simply put, it means that no steps were taken to provide the second
appellant with legal representation during the taking of the
warning
statement, despite him making such an election.
20.
When asked whether he
was willing to make a statement in relation to the allegations
against him, he elected not to make a statement.
The investigating
officer proceeded to ask him questions, despite the second
appellant’s election to have a lawyer present
and to not answer
questions, and he then made certain admissions. The below court
consequently convicted the second appellant based
on the admissions
made.
21.
The same can be said
about the third appellant in relation to the warning statement he
made to the investigating officer. He also
wanted to have a lawyer
present and even informed the investigating officer that his brother
was on his way with a lawyer. However,
questions were asked and the
third appellant made certain admissions, even though he elected not
to answer questions.
22.
The court below, in
admitting the warning statement of the second appellant, stated that,
“…
the
answers and questions were exculpatory. He did not incriminate
himself. Accused 2 (second appellant) also admitted that he had
heard
shots (referring to gunshots). The court asked the defense whether
the admissibility of the warning statement was disputed.
It was not
disputed, as the state pointed out. It was admitted, but the defense,
however, indicated that they will ask questions
in cross-examination
of the witness in respect of the statement.”
23.
An admission must, in
order to be admissible, meet at least three requirements;
(i)
It must be
constitutionally compliant (i.e., the accused must be informed of his
constitutional rights – to remain silent,
to legal assistance
before deciding to make a statement);
(ii)
It must be relevant;
and
(iii)
It must be voluntarily
made within the dictates of
section 219A
and comply fully with the
other requirements of that section. (
See
Commentary on the Criminal Procedure Act, Du Toit et al, at 24-76A
).
24.
The issue of the
voluntariness of the answers and admission made is not relevant here,
as it was conceded on behalf of the appellants
that they were not
threatened or assaulted and thus, voluntarily answered the questions.
25.
In the matter of
S
v Manamela and Others
2000 (3) SA 1
(CC)
at para 35, the Constitutional Court, observed the following, with
regard to the right to silence:
“
[35]
… This Court has said that “[t]he right to silence, like
the presumption of innocence, is firmly rooted in both
our common law
and statute” and is “inextricably linked to the right
against self-incrimination and the principle of
non-compellability of
an accused person as a witness at his or her trial”.”
26.
The right to remain
silent has different applications at different stages of criminal
prosecution (See
S v
Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC)
).
When a person is arrested, the right to remain silent applies and a
person cannot be compelled to make a confession or admission
that may
be used against them later at trial (
S
v Thebus
[2003] ZACC 12
;
2003 (6) SA 505
).
In our constitutional setting, pre-trial silence of an accused person
can never warrant the drawing of an inference of guilt.
27.
The issue now is when
the warning statement of the second and third appellants were
obtained, whether they were obtained in violation
of the appellants’
rights, namely the right to have a legal representative present and
the right to remain silent or not
to answer questions; and whether
the admissibility thereof rendered the trial of the second and third
appellants unfair.
28.
Paragraph 3(a) of
the warning statement, which was not placed in dispute during trial,
indicates that both the second and third
appellants were warned of
“…
their
right to remain silent throughout the interviews and are not
compelled to make any statement or to answer any questions. Any
statement that they make and anything they say, will be written down
and may be used as evidence in a court of law. Should they
prefer to
make a statement or to answer questions, such a statement or answers
will be admitted to the prosecutor…”
(sic).
29.
It must further be
noted that the second and third appellants did not make any
allegations of torture, threat or assault when the
warning statements
were taken and the “question and answer” which followed,
was made voluntarily by the appellants,
despite being warned of their
right to remain silent and not to answer questions.
30.
Now what must be
determined is whether the statement made under circumstances set out
in paragraph 29 above, is admissible and whether
it is a violation of
the appellants’ constitutional rights. In the matter of
S
v Marx and Another
1996 (2) SACR 140
(W)
at
148D-F, Cameron J (as he then was), observed the following, in this
respect;
“…
it
seems to me to be sufficient if the accused or the suspect is
informed of his right and chooses, knowing of it, to proceed to
make
the statement or the pointing out in question…”
31.
The second and third
appellants were fully aware of their constitutional rights, as it was
explained to them and it is then my considered
view that, knowing of
their rights, the appellants should have refused to answer the
questions asked by the investigating officer,
because at that stage
they knew that they were not compelled to answer questions. I am
therefore of the view that the warning statements
by the second and
third appellants were appropriately admitted as evidence, considering
that they were exculpatory in nature, as
was correctly found by the
court below.
Sufficiency
of Proof
32.
It is trite that the
onus to prove the guilt of the appellant rests with the respondent (
S
v Van der Meyden
1999 (2) SA 79
(W)
).
As already indicated, there was no evidence in respect of the
identity of the appellants led.
33.
The first appellant
voluntarily made the pointing out of the scene and made certain
admissions about the role he played on the night
of the incident. The
second appellant, in his warning statement, admitted to being present
at the scene, but denied that he committed
any offence. The fact that
he voluntarily travelled with the first and third appellants to the
scene and remained there until the
shots were fired and items taken
from the premises, makes him liable for the offence he is charged
with. The fact that the second
appellant evaded his arrest, by
running away when the police wanted to arrest him on the first
occasion, suggests that he knew
something about the offence. The
second appellant also made certain admissions to the investigating
officer, in respect of the
offences, which also makes him liable for
the offences proffered against him.
34.
The third appellant
made certain admissions of being present at the scene, in his warning
statement. Apart from the statement he
made, there is evidence that
he sold cellular devices, which were stolen from the murder scene, to
two people. The first cellular
device was sold a day after the
incident, at 9h00, whereas the incident occurred at 23h45 the
previous night. I am satisfied that
the cellular device was recently
stolen, when it was sold the following day.
35.
In the matter of
Mothwa
v the State (124/15)
[2015] ZASCA 143
at para 8, the court, in respect of the doctrine of recent
possession, observed;
“
The
doctrine of recent possession permits the court to make the inference
that the possession of the property was obtained in the
commission of
the offence and in certain instances, was also a party to the initial
offence. The court must satisfy itself that
(a) the accused was found
in possession of the property, (b) the item was recently stolen…”
36.
The second cellular
device was sold a few days later by the third appellant, to his
neighbour, Mr Ngcobo. No specific reason was
offered as to why the
two witnesses who purchase the cellular devices from the third
appellant would lie about him.
37.
In addition, upon his
arrest, the third appellant spontaneously informed the police that he
knows the reason for their presence
and that he is wanted for the
murder case. The police could not have warned him of his
constitutional rights, because this admission
was made immediately
after the door of the house he was hiding in from the police, was
opened by the police. The third appellant,
without improper
influence, voluntarily and spontaneously made such admissions. (see
S
v Khan
1997 (2) SACR 611
(SCA)
).
38.
The state discharged
its onus in proving the guilt of the appellants in all counts and
there is no need for this court to interfere
with the decision of the
court below.
Sentence
39.
In
S
v Bogaards
2013 (1) SACR 1
(CC)
at
para 41, the Constitutional Court, when dealing with the appellate
court’s power in respect of appeals on sentence, observed;
“
[41]
Ordinarily, sentencing is within the discretion of the trial court.
An appellate court’s power to interfere with sentences
imposed
by the court below is circumscribed. It can only do so where there
has been an irregularity that results in a failure of
justice, the
court below misdirected itself to such an extent that its decision on
sentence is vitiated or the sentence is so disproportionate
or
shocking that no reasonable court could have imposed it. A court of
appeal can also impose a different sentence when it sets
aside a
conviction in relation to one charge and convicts the accused of
another.”
40.
The appellants were
sentenced to three years imprisonment for contravention of the
Immigration Act 13 of 2000. Section 49(1)(a)
provides that a person
will be liable, on conviction, to a fine or to imprisonment not
exceeding two years. The appellants in casu
were sentenced to three
years imprisonment, and this sentence thus exceeds the sentencing
jurisdiction in terms of the Act. The
court below misdirected itself
and thus, there is a need to interfere with the sentence imposed on
this count.
41.
Count 1 provides for a
minimum sentence of not less than 15 years imprisonment for a first
offender. The appellant can only escape
this sentencing regime if he
can show the existence of compelling and substantial circumstances in
terms of Act 105 of 1997. Count
2 provides for a minimum sentence of
life imprisonment for an offender convicted under the circumstances
set out under section
51(1) of Act 105 of 1997. The appellant in this
subsection, can escape the prescribed sentence if he can show the
existence of
substantial and compelling circumstance. The court below
did not find such substantial and compelling circumstances and
sentenced
the appellants according to the prescribed sentences.
42.
In the seminal judgment
of
S v Malgas
2001
(2) SA 1222
(SCA)
,
the court observed that the minimum sentence, as dictated by the
legislature, is a point of departure. However, a court may depart
from the prescribed sentence where it is not appropriate in light of
the circumstances of the crime committed in a particular matter.
43.
The deceased in count 2
was shot and killed, in the course of the commission of a robbery,
which thus makes the offence in count
2 fall squarely within the
ambit of section 51(1) of Act 105 of 1997. The deceased was killed in
a place she thought safe. After
the appellants gained entry by
breaking the window, a bullet was shot through the door, which
eventually killed the deceased. The
deceased was not alone in her
bedroom, at that time – she was with her minor child.
Fortunately, the child was asleep at
that stage. The door to the
deceased’s bedroom was locked and the police had to break it
down to gain entry to the bedroom.
Obviously, the child saw the body
of its mother.
44.
The deceased was killed
in a callous and cold-blooded manner. Her right to life was taken
away by the appellants. She did not die
a dignified death at the
hands of the appellants and as such, her right to dignity was also
taken away by the appellants.
45.
One of the cellular
devices stolen was meant for the education of one of the
complainants, as it was issued by the Department of
Education. The
cellular device was sold for a meagre amount. Fortunately, most of
the stolen items were recovered when the appellants
were arrested,
but the bicycle remains missing.
46.
We are of the view that
there is no need to interfere with the sentence of the below court in
this regard, as we see no misdirection.
47.
In the consequence, the
following order is made;
1.
The appeal against
conviction is dismissed.
2.
Appeal against count 1
and 2 is dismissed.
3.
Appeal against count 3
is upheld and substituted, the sentence to be served by the accused
is as follows;
3.1.
Count 1: fifteen (15)
years imprisonment;
3.2.
Count 2: life
imprisonment;
3.3.
Count 3: two (2) years
imprisonment.
M.J MOSOPA
JUDGE OF THE HIGH
COURT, PRETORIA
I
agree,
M.B
MABUNDA
ACTING JUDGE OF
THE
HIGH COURT,
PRETORIA
APPEARANCES
For
Applicant:
Adv Kgakane
Instructed
by:
For Respondent:
Adv van Vuuren
Instructed
by:
Date of
hearing: 3 February 2021
Date of
delivery: Electronically
transmitted